State ex rel. Fazzio v. Triolo

• Decision Date: 08 July 1924
• Docket Number: 26694
• Citation: 156 La. 824,101 So. 211
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. FAZZIO v. TRIOLO et al. In re FAZZIO

101 So. 211

156 La. 824

STATE ex rel. FAZZIO v. TRIOLO et al. In re FAZZIO

No. 26694

Supreme Court of Louisiana

July 8, 1924

Frank S. Normann, of New Orleans, for relator.

OPINION

OVERTON, J.

Domenico E. Fazzio, the relator herein, was married to Virginia Triolo, the daughter of Dominick and Elizabeth Triolo. Virginia Triolo died in this city on March 23, 1922, leaving a baby daughter, Christina Fazzio, as the sole issue of her marriage. Dominick and Elizabeth Triolo, the grandparents of Christina, obtained possession of the child at the death of her mother, and have retained possession of her ever since. In the latter part of 1923 relator demanded possession of the child, but the child's grandparents refused to comply with the demand. Thereupon relator filed in the civil district court for the parish of Orleans a proceeding praying that a writ of habeas corpus issue commanding Dominick and Elizabeth Triolo to produce the child in open court, and that, after due hearing, the child be restored to him. An order was granted by Hon. Porter Parker judge of division D of the civil district court, ordering that the writ issue as prayed for, returnable before his division, at 10:30 a. m. on December 10, 1923.

The application for the writ of habeas corpus has not yet been tried. Instead, the application has been transferred to division C of the civil district court, to be consolidated with a proceeding pending therein for the appointment of a tutor to the child, instituted by Dominick Triolo, some three months after the filing of the application for a writ of habeas corpus.

Relator felt aggrieved because his application for a writ of habeas corpus had not been tried, and because the application for it had been transferred to division C to be consolidated with the petition of Triolo to be appointed tutor of the child. He therefore petitioned this court for a writ of mandamus to compel the judge of division D to try the application for a writ of habeas corpus, and also for a writ of prohibition to prohibit the consolidation of the habeas corpus proceedings with those of the tutorship.

Relator alleges in his application addressed to this court that eleven continuances have been granted in the proceeding for a writ of habeas corpus during a period of approximately six months. He also alleges that among these eleven continuances ten were granted over his protest. He further sets out that the first one was granted, over his objection on December 10, 1923, the return day for the writ, upon the statement of counsel for the Triolos that they had not had time to examine into the facts of the case, and therefore requested a continuance to enable them so to do. He represents that the next seven continuances were granted over his objection, upon the request of the defendants, and the ninth he admits was granted because his own counsel was engaged in another division of the court in the trial of a jury case. The tenth continuance he alleges was granted because the child, whose possession is in controversy, had the measles, and needed the attention of her grandmother. He alleges that he objected to this continuance chiefly because of the number that had already been granted. The eleventh continuance is not properly a continuance, but is rather the transfer of the case to division C of the civil district court upon the suggestion of defendants, to be consolidated with the tutorship proceedings, which was done over the objection of relator on June 2, 1924, four days before this court was petitioned for relief.

This court, after considering the application of relator, ordered a rule nisi to issue, directing the judges of divisions C and D to show cause why the relief prayed for by relator should not be granted. Both judges have filed their answers to the rule, and have forwarded the records in the habeas corpus and in the tutorship proceedings to this court.

The judge of division D, who issued the writ of habeas corpus avers that the case in which the writ issued was first fixed for trial for December 17, 1923, but was continued for one week on the statement of counsel for defendants that they had not had sufficient time within which to examine into the facts and prepare for the defense of the case; that between that day and February 11, 1924, the case was continued from time to time because of representations made to respondent, which led him to believe that the case would be amicably adjusted; that on February 11, 1924, the case was called for trial; that counsel for the defendants therein then filed exceptions to the application for the writ of habeas corpus, and, we might add, an answer also; that respondent took the exceptions under advisement for one week and then overruled them; that counsel for the defendants then notified respondent of their intention to apply to this court for writs of certiorari and prohibition; that in order to permit defendants to make the application the case was again continued; that on March 17, 1924, it was again continued on account of the absence of respondent from the city; that on March 24, 1920, it was continued on account of illness in the family of one of the attorneys for defendants; that on April 7, 1924, it was continued at the instance...